The words may not be in the Constitution, but according to Yale’s Jon Butler, one of the deans of American religious history, it is certainly implied in the First Amendment. Butler writes:
Modern constitutional conservatives, such as Chief Justice William Rehnquist (in his 1985 dissent to Wallace v. Jaffree), often argue that the First Amendment meant only to prohibit establishing a national church, while permitting government to pursue other engagements with religion. But this position is hard to reconcile with the fact that Congress, in writing the Amendment, specifically rejected narrow language merely forbidding a national church.
In June 1789 Congress declined a proposal from James Madison for a constitutional amendment about religion that said, “nor shall any national religion be established.” In September 1789, Congress rejected several additional proposals for a narrow religion amendment. These would have prohibited establishing “one religious sect or society in preference to others,” or “establishing any religious sect or society,” or “establishing any particular denomination of religion in preference to another.”
In the final version of the First Amendment, congressmen and senators used the broader word “religion,” and when discussing the issue of “free exercise” of religion they never limited its meaning to Christianity or Judaism.
No wonder. The new states in the 1790s already exhibited exceptional religious diversity—at least twenty-five different versions of Christianity, plus Judaism and Islam—and Americans seemed more fascinated than worried about religious diversity…
So, yes, the First Amendment did refer to the separation of church and state. Jefferson used the phrase to explain one, but only one, meaning of the first principle in a remarkable two-part Revolutionary-era achievement: that the new federal government would “make no law respecting an establishment of religion” and that it also would guarantee “the free exercise thereof.”
No other nation, much less a new one, had ever dared divorce religion from government so completely, and Congress fittingly used the concepts of “religion,” “establishment,” and “free exercise” broadly, not narrowly.
This is why we still argue about the subject. We actually know a lot about Congress’s precise intent with its broad constructions, although we always want to know more. But mainly we’re still trying to figure out what these concepts mean for us and for our nation today.
Good points well put.
I basically agree with the piece, but I will quibble a bit regarding Rehnquist.
I don't see Rehnquist's argument as being far from the truth.
The First Amendment as we have it prohibits respecting an establishment, while the various rejected alternatives speak of prohibiting the establishment. The difference seems to be that the First Amendment prohibits not only establishment, but even respecting an already extant establishment.
In both cases, however, the principle is that the federal government could not respect any specific, one sect. As Joseph Story argues, the First Amendment was not meant to level all religions, or to exclude Christianity from the government entirely, but only to avoid any conflict between the various sects. Apparently, if a law were passed that did not respect one particular establishment of religion, but instead respected religion ( = Christianity) in general, then this would be permitted. Thus, we see that Congress opens its sessions with prayer, and has days of Thanksgiving for God's miracles. These are seen not as favoring one particular sect, but as rather favoring religion and God in general. As Joseph Story says, the matter of religion was left to the states primarily because there was no consensus on the national level. That is, federalism – meaning social contract – is concerned with consensus and consent, and if there is no consent on one level of society, then you must move on down to a more local level of society. Accordingly, the federal government would be allowed to deal with religion wherever there was a national consensus. There might not have been a consensus about whether one should be taxed to support the Episcopalians or the Presybterians – and so no one was to be taxed at all – but there was certainly consensus that God was the Lord and was to be thanked for the victory in the Revolutionary War.
Furthermore, the Establishment Clause builds on Luther's doctrine of the two kingdoms, as Madison remarks in his letter to Schaeffer. According to this, there was a sort of separation of powers between the state and church, each having separate jurisdiction (Kuyper's “sphere sovereignty”). The state was prohibited to deal with the aspects of religion between man and God, but it was expected to deal with religion insofar as this affected society and man's relations with his neighbors. As people like Locke, Blackstone, Thomas Paine, James Otis, and James Wilson argued, the laws of man ultimately must find accord and justification in the laws of God. None of this is found in the text of the First Amendment, but it is unquestionably part of its heritage, I believe, and should be considered authoritative.
So Rehnquist is not far from the truth when he says the Establishment Clause was “meant only to prohibit establishing a national church, while permitting government to pursue other engagements with religion.” Joseph Story's account squares nicely with Rehnquist's.